Inhabitants of Shrewsbury vs. Asa F. Smith & another, 12 Cush. 177

By the Court. There was no relation of privity between these parties; they were under no obligation to each other, except that which arises from being members of the same community, and having rights and interests in the same water course; the social duty indicated by the maxim sic utere tuo ut alienum non leedas.

That rule in relation to a subject like the present is, that each proprietor, in exercising his own rights in his own territory, shall act with reasonable skill and care, to avoid injury to others; and as an approximate rule for measuring that degree, it shall be that degree of ordinary skill, care, and diligence, which men of common and ordinary prudence, in relation to similar subjects, would exercise in the , conduct of their own affairs. This was the rule laid down in the present case, and we think it was right. 1.

In regard to the particular point taken by way of exception, the court are of opinion that the examination and report of persons employed by the defendants, as persons of competent skill and capacity to judge, was competent evidence. It tended to prove the care and caution of the mill owners, in a matter in which it was for then- interest to be truly informed and well instructed. It was for the jury to judge of its weight. 2.

We are of opinion that the declarations of the defendants, and their purposes and intentions, in doing acts in connection with the dam, were competent as res gestee, on the question of care of the dam. Exceptions overruled. Thomas, J., did not sit in this case.